Questioned by Mackinac Center attorneys, MEA President Luigi Battaglieri admitted to using without permission the Mackinac Center’s and professional athletes’ names for union-related fundraising. His lawsuit maintained the Mackinac Center needed his permission to similarly use his name.

One year ago this past weekend, a Michigan appeals court dismissed a lawsuit filed by the Michigan Education Association seeking monetary damages from the Mackinac Center for accurately quoting a statement made by MEA President Luigi Battaglieri. The following article, which appeared in the Summer 2004 edition of Michigan Education Report, is a review of this important case. It provides an invaluable reminder that free speech isn’t free – it must be defended, sometimes at great personal cost, against those who would restrict it. The Mackinac Center is proud to have fought and won this battle for the constitutional principle of free expression – and the right to publish the truth.

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Court rejects MEA lawsuit against think tank

A Michigan court has dismissed a lawsuit brought by the Michigan Education Association (MEA) and its president against the Mackinac Center for Public Policy, ending a case that drew nationwide attention to free-speech rights and embarrassment to top union officials for nearly two years.

A three-judge panel unanimously ruled that the Mackinac Center acted “squarely within the protection of the First Amendment” when it quoted MEA President Lu Battaglieri telling reporters, “Frankly, I admire what the Mackinac Center has done.”

Battaglieri said he admired what the nonpartisan policy institute had done when he convened a news conference in September 2001 to tell reporters of his union’s plans to counter the influence of Mackinac Center reports and studies. The Mackinac Center included the quote in a fundraising letter, noting that the MEA is generally at odds with Mackinac Center research. [Disclosure: The Mackinac Center publishes Michigan Education Report.]

The union never denied that Battaglieri told reporters he admired what the Mackinac Center had done, and Battaglieri affirmed under oath that the Mackinac Center’s letter did not misquote him.

The dismissal of the MEA’s lawsuit is seen by First Amendment defenders as a clear-cut legal victory for free speech that left observers wondering why the union would risk its resources and reputation to try to stop the Mackinac Center from accurately quoting its president’s public remarks.

Challenge to Free Speech

The Mackinac Center published the letter containing Battaglieri’s quote in November 2001. According to court documents, Battaglieri said his quote “became a source of embarrassment” when some legislators and MEA staff members learned he had praised the Mackinac Center and began to ask him “tongue-in-cheek,” “when did you become the poster boy for the Mackinac Center?” The MEA had been an outspoken critic of Mackinac Center research.

Excerpt of Battaglieri Remarks

The following is a partial transcript of remarks made to reporters by
Michigan Education Association President Luigi Battaglieri at his news
conference September 27, 2001.

“I know what’s in your minds - I think I’ve worked with the media enough
that I expect the headline is going to be that the MEA takes on the
Mackinac Center. . . . I guess I expect their reaction to be one where
they will welcome us as new kids on the block to enter into the field that
they’ve been into for a number of years now, and I assume they’re going to
scrutinize our research just as much as we’ve scrutinized theirs. And so,
quite frankly, I admire what they have done over the last couple of years
entering into the field as they have and being pretty much the sole
provider of research to the community, to the public, to our members, to
legislators, and so on. . . . [T]hose of us in the educational community,
for being in the business of educating, we’ve done a poor job in my
opinion in the past of educating the public about all the good things that
are going on in public education.”

In December the MEA contacted the Mackinac Center and demanded that it refrain from using Battaglieri’s or the union’s name in solicitations, and also demanded the names and addresses of people whom the Mackinac Center had asked for financial support. The Mackinac Center rejected the demands, maintaining that the First Amendment protected its right to repeat Battaglieri’s public remarks.

In March 2002, Battaglieri and his union sued, claiming the Mackinac Center should have obtained Battaglieri’s permission to repeat the words he told television, radio, and newspaper reporters at his news conference.
With its lawsuit the union renewed demands for the Mackinac Center’s mailing list, a permanent gag order to restrict the Center from using Battaglieri’s name and the word “MEA,” and added a new demand for an undetermined sum of money from the Mackinac Center.

Within days the Mackinac Center secured an offer of free legal counsel from the public-interest law firm, Institute for Justice. The Washington, D.C.-based institute, which specializes in defending constitutional liberties, told the Mackinac Center it wanted to “… make clear that a private party like the MEA may not use the courts to silence speech that it finds disagreeable.”

The court case between two of the most influential entities in Michigan education policy – one a $700 million union conglomerate and the other a $3 million nonprofit research institute – went unnoticed by the news media until the Mackinac Center and the Institute for Justice called their own news conference in May to announce that the Center would not accede to the union’s demands, but would defend itself against the union’s “attack on free speech.”

Free-Speech Threat Brings National Attention

Journalists around the country took a keen interest in the case once they realized the lawsuit posed a potential threat to free speech, the bulwark of the media. The Detroit News opined on its editorial page, “If the courts follow the MEA’s logic, free speech would be squashed.”

Others weighed in while waiting for the Ingham County Circuit Court, where the lawsuit was filed, to act. George Will, writing for the Washington Post, warned of the danger of using the courts to suppress dissent but predicted the Mackinac Center would “… easily defeat the MEA’s frivolous claim….”

John Fund, Wall Street Journal editorial writer, wrote that the Mackinac Center “plainly [was] exercising its constitutionally protected right of free speech” when it quoted Battaglieri, adding that the MEA’s lawsuit merited “the prize for intimidation.”

Syndicated Boston Globe columnist Jeff Jacoby wrote that the MEA sued because of the union’s “bitter resentment” of the Mackinac Center’s success in advancing education reform, or simply to drain the Center of money with a “meritless” lawsuit. He compared the union’s demands to segregationists’ attempts to intimidate civil rights advocates through the courts in the 1960s.

Michigan news outlets carried the story statewide, ultimately prompting even newspaper letters to the editor from MEA members who questioned the union’s use of their dues dollars. Nearly every article repeated the quote that Battaglieri said required his permission to use.

No newspapers or commentators were found supporting the MEA’s position. The Lansing State Journal editorialized that the union gave “new meaning to the term ‘frivolous lawsuit.’” The MEA, while maintaining it was the aggrieved party taking reasonable legal action to protect its interests, made no mention of the lawsuit to its 150,000 members on its Web site or in its monthly magazine, “MEA Voice.”

An Associated Press story described MEA spokeswoman Margaret Trimer-Hartley as “angrily deny[ing] the Mackinac Center’s charge that the MEA is trying to stifle free speech.” The story quoted Trimer-Hartley defending the union’s lawsuit, saying, “We simply want to stop the Mackinac Center from using our organization to make money for their cause.”

MEA Raises Money Using Mackinac Center’s and Celebrities’ Names

But Battaglieri’s statements under oath revealed that he and his union had used the names of the Mackinac Center and sports celebrities for union fundraising – precisely what his lawsuit attempted to prohibit the Mackinac Center from doing.

Battaglieri told the court he sued because the Mackinac Center “used me, my name, and the association’s name for their [the Mackinac Center’s] solicitation purposes.” He added, “And I believe and have been led to believe, understand, that there’s case law that prevents people from doing that.”

But when questioned about whether he had ever used the name of the Mackinac Center in connection with raising funds for MEA-PAC, the union’s political action committee, Battaglieri responded, “I’m sure that I have…” and added that he has not said the Mackinac Center supports the MEA. MEA-PAC raised more than $1.4 million for the 2002 election cycle, making it the state’s third-largest PAC.

The union also used sports celebrities’ names without permission in 2001 to promote a fundraising golf tournament. Part of the solicitation for that event read “And, because Palmer, Nicklaus, and Woods aren’t available to play in MEA’s Scholarship Fund golf outing … Battaglieri is looking for three players to fill out his foursome.”

Court documents have Battaglieri admitting the union made no effort to secure the permission of those well-known professional athletes before using their names to promote the union’s fundraiser. Nevertheless, Battaglieri called it “appropriate” to use those golfers’ names to promote his golf outing without obtaining their permission.

It remains unclear how Battaglieri distinguished between the Mackinac Center’s use of his name in its fundraising letter, over which he sued, and his use of the Mackinac Center’s and professional athletes’ names to raise money for the union’s political and other purposes.

Battaglieri’s lawsuit also contended that the act of quoting Battaglieri’s words of admiration had made it seem as if he admired, or endorsed, the Mackinac Center in some way other than the way he actually admired it.

The paragraph of the Mackinac Center letter that quoted Battaglieri reads

“This fall Luigi Battaglieri, president of the Michigan Education Association, stated ‘Frankly, I admire what the Mackinac Center has done.’ Mr. Battaglieri, whose union is generally at odds with the Mackinac Center, said this with respect to how Mackinac Center research has shaped education reform in Michigan and around the nation.”

Questioned by the Mackinac Center’s attorney as to whether he believed he had been misquoted, Battaglieri said, “No.”

Asked by the attorney to recall the context in which he spoke at his news conference, Battaglieri said, “… it was my recollection that I was answering it as, you know, who wouldn’t admire what the Mackinac Center has been able to do in terms of being able to get their positions to the legislature uncontested?”

Asked by the attorney whether he believed the Mackinac Center had shaped education reform, Battaglieri said the Center was influential. “I think they’ve [the Mackinac Center] been very influential with legislators, they’ve been influential in policymaking. They were influential with the current governor [Engler]…. So clearly the influence has been there for the last twelve years,” Battaglieri said.

MEA maintained that its lawsuit was legitimate. At one point the union indicated it would settle the case if the Mackinac Center would pay it $75,000. The Mackinac Center declined, saying it had a strong case.

After a circuit court judge in late 2002 set a date for trial, the Mackinac Center argued that the MEA’s complaint was meritless and asked the Michigan Court of Appeals to intervene. The appeals court placed a stay on trial proceedings while it considered whether the MEA should be allowed to move forward with its lawsuit.

Judges Unanimously Toss MEA Lawsuit

By the time the appeals court heard oral arguments in February 2003, news reports called the case a “high profile free speech feud.” Joel Kurth of the Detroit News noted years of disagreement between the MEA and Mackinac Center, writing, “Research from the Mackinac Center repeatedly has been cited by lawmakers while approving laws the MEA opposes.”

In March, a three-judge panel of the appeals court ruled that the circuit court judge had erred in not dismissing the case outright. In an opinion signed by all three, the judges said
“… we conclude that the publication [Mackinac Center’s letter] falls squarely within the protection of the First Amendment for discourse on matters of public interest,”
and
“… plaintiffs [MEA] have simply come forward with no such circumstantial evidence that Mackinac intended or knew that its publication would be interpreted by its readers in the manner plaintiffs argue.”

Media reaction was sharp and decisively in accord with the court’s finding.

News stories around the state again repeated Battaglieri’s original quote expressing his admiration for what the Mackinac Center had done. While the MEA’s Trimer-Hartley said union officials were “disappointed” to have their case rejected, the Associated Press quoted Clark Neily, the Institute for Justice’s lead attorney in the case, saying, “We have said from day one that this was a totally frivolous lawsuit. It had no merit.”

Editorials representing the positions of the Detroit Free Press, Detroit News, Lansing State Journal, Oakland Press, and other daily newspapers condemned the union’s lawsuit and praised the court’s decision protecting the right to quote. The editors called the MEA’s decision to sue an “intimidation tactic,” “questionable use of the union’s resources,” “frivolous,” “frantic recklessness,” and an “assault on freedom of speech.”

MEA’s subsequent decision not to appeal the court’s dismissal of the lawsuit ended the case. The union must pay the Mackinac Center’s court costs, even though the Institute for Justice defended the Center for free.

In an interview after the Mackinac Center’s victory, Executive Vice President Joseph Lehman said, “There’s nothing wrong with calling a news conference to criticize the Mackinac Center or anybody else. There is something very wrong with suing the people who accurately repeat what you actually say.”

Mackinac Center President Lawrence Reed said, “Teachers deserve better leadership at MEA headquarters. We have helped many teachers over the years exercise their rights when their union mistreats them or misuses their compulsory dues. This lawsuit was just one more reminder of why we have been effective, and why we are needed.”